from the this-could-get-interesting dept

One of the interesting things about Google Fiber is that it isn't just people getting shiny new 1 Gbps connections for $70: it's a network data collection exercise, a marketing experiment, a testbed for new services and ads -- but first and foremost it's a massive public relations fire under the posteriors of the nation's all-too-comfortable, government-pampered, uncompetitive broadband ISPs. Google Fiber isn't really even available to all that many people (a few thousand, probably), yet its impact on the national discourse has been massive. Also impressive has been the sheer volume of free marketing Google gets for the service as cities -- dissatisfied with existing broadband ISPs -- climb on top of and over one another to be first in line to be next in line.

Google's first call for a potential city (before they picked Kansas City) resulted in an unprecedented nationwide media frenzy. Four years later with just two (Kansas City and Provo, barely) markets launched and a third planned (Austin), its pretty clear that Google Fiber won't be coming to most of us anytime soon. Still, Google recently cleverly teased some 34 cities in 9 metro areas with the faint possibility they could be next in line. From a Google blog post:

"We aim to provide updates by the end of the year about which cities will be getting Google Fiber. Between now and then, we’ll work closely with each city’s leaders on a joint planning process that will not only map out a Google Fiber network in detail, but also assess what unique local challenges we might face....While we do want to bring Fiber to every one of these cities, it might not work out for everyone. But cities who go through this process with us will be more prepared for us or any provider who wants to build a fiber network. In fact, we want to give everyone a boost in their thinking about how to bring fiber to their communities; we plan to share what we learn in these 34 cities..."

In short, Google's again creating free media coverage for themselves while drawing attention to the ignored competitive problems in the country's broadband market. Cities that won't get Google Fiber (and I'd bet only one or two of the 34 actually will) will at least benefit from the experiences Google and other cities have learned as they attempt to navigate installation pitfalls and disrupt the status quo.

Google Fiber's selection of these 34 cities also indicates they want to start a broader conversation about the bills ISPs have gotten passed in a number of states that hamstring town and city efforts to wire themselves with broadband -- even if nobody else will. The Carolinas in particular have been a real hotbed of protectionist legislation crafted by the likes of Time Warner Cable, AT&T and CenturyLink, and by focusing on the Raleigh-Durham area and Charlotte, Google pretty clearly wants to bring the focus on these awful bills into the foreground.

from the urls-we-dig-up dept

Playing video games can become an obsession. Just like some people like to re-read books they've already read over and over again, some gamers play their favorite games even after they've finished all the levels in a game. And now, there are more and more games that don't really have an ending, so you could just keep playing the game forever until you got bored -- or figured out your own goals to accomplish in the game. Here are just a few examples of gamers getting creative with how they play.

from the I-was-absolutely-not-watching-porn,-officer dept

We've talked for years about how while distracted driving laws may be well-intentioned, they often present a new variety of problems. Requiring that touch screens are locked while the car is in motion, for example, ignores the fact that other people might be in the passenger seat and interested in using the technology. Banning some behaviors can also cause people to try to hide the fact they're doing them, which has the potential to be more dangerous. While there's absolutely no doubt that distracted driving is a serious, significant problem (especially texting behind the wheel), the regulatory fixes proposed can often bring up a laundry list of unintentional new issues a politician with a fleeting understand of tech (and a limited imagination) might not be sensitive to.

Efforts to ban Google Glass while driving are similarly complicated. Reuters this week reported that Google lobbyists have been busy trying to shut down distracted laws in a handful of states, including Illinois, Delaware, and Missouri. The laws, also being proposed in New York, Maryland and West Virginia (among others), would in many cases ban outright the use of wearable computing devices. While there's no mistaking that Google's lobbying efforts are about protecting revenues first and foremost, there does seem to be a salient point being made in the midst of the discussion:

"While Glass is currently in the hands of a small group of Explorers," the company said, "we find that when people try it for themselves they better understand the underlying principle that it's not meant to distract but rather connect people more with the world around them."

In my mind, Google Glass is effectively just a heads up display. It's an early, clunky plastic version of what's to come, but it's just a HUD. As any military pilot (or hey, the terminator) could probably attest, there could very well be useful functionality embedded in such devices that provides the driver with additional information that could actually make them safer or a better driver. Blind spot monitoring and improved-view HUD cameras, traffic congestion warnings in the corner of your eye, subtle alerts about dangerous upcoming road conditions (think a crowd-sourced Waze or some variant with a HUD) -- are they all bad? They're all to be banned?

That's not to say Glass and future variations of the concept won't be abused; people who aren't bright will certainly try to watch YouTube videos while driving eighty miles an hour on the Long Island Expressway. But people are either dumb, or they aren't. Your fellow highway dwellers are either entirely awful at operating motor vehicles -- or they aren't. If they're simply bad at it, a bevy of new regulations or rules won't protect them (or you) from them being distracted by pretty much everything -- including chickens, a dropped cigarette, signs, loud noises, other people, farts, or their own thoughts.

Enforcement also seems like a tricky proposition here. As Glass naturally evolves and other companies jump on board, it's going to move from an obvious piece of wearable plastic computing, to contacts, eyeglasses or implants that aren't really distinguishable from normal human features. How does a police officer prove you were using this technology for distracting purposes, versus using it to help drive? They don't: as with current texting rules they just doltishly ban you from doing everything on a phone, even if you're just updating GPS settings. How would law enforcement confirm what you're doing on your retina's HUD without violating your privacy? I'd imagine they won't.

Not to make a habit of siding with lobbyists too often, but it seems like outright bans on what is effectively heads up displays is a bridge too far. I'm not sure tech-challenged DC can effectively and intelligently navigate the transhumanist concerns of tomorrow when they're not even capable of understanding the simple technology issues of today. That said, I'm all for other, more ingenious ways of getting nitwits off the road if anybody has some.

from the King-Kong dept

King, makers of the very successful Candy Crush Saga mobile game, have been nothing if not creative in their attempt to bully other companies using absurdly broad trademark claims. Unsatisfied with simply enjoying their luck and fortune at creating an entirely derivative yet somehow hugely successful game, the company felt compelled to apply for a trademark for the word "candy." That unsurprisingly resulted in an ocean of criticism in the press, and even a little playful retribution -- including developers making a game in which players have to create a game with the word candy in it.

King is now filing to abandon their trademark on the word candy. That's not because they were willing to admit any fault on their part, but because the company will instead focus on an older, more specific trademark for "candy crush" in an attempt to wreak havoc. The company only just acquired that 2004 trademark in the last few months, and has already used it to try shut down a game called CandySwipe that came out two years before Candy Crush Saga. CandySwipe is still available in the Google Play store, and it has been flooded with five star reviews by people tired of King's shenanigans.

"King has withdrawn its trademark application for Candy in the U.S., which we applied for in February 2013 before we acquired the early rights to Candy Crusher. Each market that King operates in is different with regard to IP. We feel that having the rights to Candy Crusher is the best option for protecting Candy Crush in the U.S. market. This does not affect our E.U. trademark for Candy and we continue to take all appropriate steps to protect our IP."

In addition to using their candy crush trademark and continuing their defense of candy in Europe, King will also continue their campaign to stop Stoic, makers of the strategy-RPG The Banner Saga, from using the word saga. You know, because of potential confusion, not because King is being an obnoxious tyrant.

from the because-you're-an-idiot dept

Nearly three years ago, Senator Chuck Schumer claimed that Bitcoin was money laundering -- which is, of course, ridiculous. For years, though, there have been plenty of concerns within the Bitcoin community over when and how there would be some sort of moral panic concerning Bitcoin, leading to some sort of excessive regulation. In the past year or so, however, the government has been surprisingly restrained in dealing with Bitcoin, and really seemed to be trying hard to at least appear to understand the concept before running off half-cocked. However, when you're dealing with politicians, it's really only a matter of time until the insanity hits. And with all of this week's attention on the Mt. Gox debacle (in case you've been under a rock, the site, which was an early popular Bitcoin exchange, shut down after more massive problems, including possible theft of huge amounts of Bitcoin, were revealed), it should hardly be a surprise that a politician would launch an almost totally clueless attack on Bitcoin.

To do the honors, I present Senator Joe Manchin, who (like plenty of Senators) does appear to get a fair bit of campaign money from financial services and banking institutions. He's now calling for Bitcoin to be banned in the US with a letter to Treasury Secretary Jack Lew and Fed Chair Janet Yellen. But what's incredible in his letter is how... simply wrong he is about nearly everything regarding the cryptocurrency.

I write today to express my concerns about Bitcoin. This virtual currency is currently unregulated and has allowed users to participate in illicit activity, while also being highly unstable and disruptive to our economy. For the reasons outlined below, I urge regulators to take appropriate action to limit the abilities of this highly unstable currency.

First off, Bitcoin is not unregulated. Today's regulations concerning currency still apply to Bitcoin. Yes, there are elements that appear to be less regulated (or make it easier to skirt regulations) but to say it's "unregulated" is simply wrong. The fact that it has allowed people to participate in illicit activity could easily apply to just about any financial instrument from cash to debt to equity to whatever the hell Wall Street is cooking up. The idea that it's "disruptive to our economy" also seems... wrong. It has the potential to be disruptive in a good way (providing all sorts of benefits to today's payment systems) but Bitcoin is still tiny. It has no real impact on the economy today.

Due to Bitcoin's anonymity, the virtual market has been extremely susceptible to hackers and scam artists stealing millions from Bitcoins users.

Not even close to true. The "susceptible to hackers and scam artists" has nothing to do with the anonymity bit. For the most part, it's had to do with very poorly run businesses (like Mt.Gox) that appeared to be somewhat clueless about how to securely handle Bitcoin. This has been detailed repeatedly. In fact, the death of Mt. Gox should actually be quite a good thing for the Bitcoin community and ecosystem, because getting rid of the weak players will increase the safety and confidence in Bitcoin.

Anonymity combined with Bitcoin's ability to finalize transactions quickly, makes it very difficult, if not impossible, to reverse fraudulent transactions.

Replace Bitcoin with cash and... well, there you go.

Bitcoin has also become a haven for individuals to buy black market items.

The amount of US cash used to buy black market items makes Bitcoin barely a blip on the radar. But we don't ban cash.

I am most concerned that as Bitcoin is inevitably banned in other countries, Americans will be left holding the bag on a valueless currency.

First of all, if this is a risk that believers in Bitcoin want to take, why should the US block that? Besides there are plenty of investments that turn out to be valueless. Does Senator Manchin wish to ban all of those as well? Does he want to ban companies going bankrupt? Sometimes investments don't work out.

Two days ago, this exchange took its website down and is no longer even accessible. This was not a unique event; news of plummeting or skyrocketing Bitcoin prices is almost a weekly occurrence.

Actually, no, it's not. Let's look at the market price of Bitcoin for the past year or so, from Blockchain.info:

Is it somewhat volatile? Sure. Are prices "plummeting or skyrocketing" as an "almost weekly occurrence"? Not even close. I'm sure someone with more time could easily find stocks that show plenty of volatility as well. Why isn't Manchin looking to ban such stocks as well?

In addition, its deflationary trends ensure that only speculators, such as so-called “Bitcoin miners,” will benefit from possessing the virtual currency.

This is a key point often raised against Bitcoin, but it seems to assume that pricing can't compensate for that, and it's not clear that's the case. Yes, when something is volatile, speculators are going to prevail, but that doesn't always need to be the case.

There is no doubt average American consumers stand to lose by transacting in Bitcoin. As of December 2013, the Consumer Price Index (CPI) shows 1.3% inflation, while a recent media report indicated Bitcoin CPI has 98% deflation. In other words, spending Bitcoin now will cost you many orders of wealth in the future. This flaw makes Bitcoin’s value to the U.S. economy suspect, if not outright detrimental.

Where to start? Again, I'm sure we could find a stock or other investment opportunity that has dropped in value over the last month. But picking a arbitrarily (and ridiculously short) time frame in which to make this argument is just... well, stupid. It makes no sense. We could easily point to the inflation of Bitcoin over the past year and suggest that based on Mahcnin's own logic that Bitcoin is a good investment. Both arguments are equally stupid.

Before the U.S. gets too far behind the curve on this important topic, I urge the regulators to work together, act quickly, and prohibit this dangerous currency from harming hard-working Americans.

I'm curious. When Wall Street put the economy in real threat, including putting tons of "hard working Americans" at risk thanks to leveraging up the money supply to insane rates, did Joe Manchin (then a Governor) ask the US government to fix these issues and ban questionable banking practices? Hell no. Instead, he supported bailing out the banks. Yet, now, suddenly, he's worried about this tiny little corner of a currency he doesn't even understand?

Even more ridiculous, he's now claiming that he's only focused on Bitcoin, and his calls for regulation don't even apply to other cryptocurrencies, despite having many of the same features which Manchin doesn't even seem to understand in the first place.

This is nothing more than grandstanding anyway, but these issues are going to keep coming up, and it's important to point out when the people making these claims appear to not even remotely understand what they're talking about. Manchin's full letter is posted below in case you want to dig in deeper on the nuttiness.

Why is this story being removed from all the popular subs over and over by mods?

Message the admins about the censorship of this article by /r/news and /r/worldnews mods. They have never seemed to care about this in the past but if enough users message them it will hopefully at least provoke a response of some kind. Something needs to be done about this or this site needs to be abandoned as a platform for legitimate political discourse.

Last night, the original article from firstlook.org was taken down and tagged as "not appropriate subreddit." Meanwhile, another copy of the story was allowed to rise, despite having an editorialized title. Later, the version that had been taken down--which was older and had fewer upvotes because it had been removed--was put back up and the younger version with more upvotes was removed, allegedly because the topic was "already covered."

This tactic has been used to keep other similar stories from rising, such as the one about the NSA sharing information with Israel.

Ninja edit: subscribe to /r/undelete and /r/longtail if you're interested in keeping an eye on popular content that's been removed by mods.

Censorship on reddit? It seems almost ridiculous considering the amount of subreddits available for those submitting stories. But it's there all the same (although not actually "censorship" so much as a bad direction for a community based on meritocracy to go in). According to commenters, both r/news and r/worldnews (two of the biggest subreddits), the firstlook.org post was removed over and over again once they began collecting upvotes, forcing each submission to start over at "0" and face an uphill struggle for visibility.

The decision to clamp down on news detailing this particular leak brought a whole lot of irony with it. The efforts made to remove an unflattering story about intelligence agencies' dirty little efforts to use the internet to destroy reputations and manipulate public perception led to tongue-in-cheek speculation that Reddit itself is compromised. (And there's certainly no way to be sure it isn't…)

Techdirt may have been the inadvertent beneficiary of bad behavior by subreddit mods, but that's hardly reason to celebrate. If the mod situation is as bad as it appears to be, Reddit is going to start heading down the path of Digg, whose infamous "bury brigade" worked tirelessly to ensure only certain news coverage made its way to the top of the list.

This isn't an easily-solvable problem, thanks to Reddit's hydra-like structure, with hundreds of subreddits and no clear demarcation of command. The corporate Reddit, which ostensibly "controls" the community, has largely taken a hands-off approach. This is still the best option and the reversal of the r/politics arbitrary ban list shows the community still has the power to solve some of its mod problems. But widespread story burial, coupled with evidence of subreddits being gamed by mods, isn't exactly comforting, especially considering Reddit's journalistic aspirations.

Like any platform with millions of users, issues will never be non-existent. But a failure to address the abuse of power by mods of larger subreddits will hurt Reddit in the long run. Power coupled with an almost-complete lack of accountability is always a bad thing. But this problem will need to be solved internally by the subreddits themselves. There's power in numbers, something subreddit subscribers should be able to leverage to start cleaning this mess up.

from the bad-on-multiple-levels dept

We've been following the saga of Cindy Garcia for quite some time now. She appeared in the now infamous YouTube film "Innocence of Muslims" that attracted worldwide attention after it was blamed for various riots and fatwas from extremist Muslims, because the horribly scripted, produced and acted film is clearly insulting to the religion. While the video had been out for months prior to the controversy, once it started generating so much attention, Garcia tried pretty much every trick in the book to make the movie disappear. She sued both the producer and YouTube in California state court. That failed. Then she moved on to federal court, where she claimed that the movie violated her copyright, an argument that is and has always been laughable. We assumed, naturally, it would fail quickly -- and it did. However, she and her lawyers kept arguing, and in a somewhat shocking -- and incredibly troubling -- move, the 9th Circuit appeals court has ruled in her favor, in a ruling written by Judge Alex Kozinski.

We've written about Kozinski plenty of times in the past. He's one of our (and many court watchers') favorite judges for his willingness to speak in a straightforward manner and his similar proclivity to make jokes and poke fun at himself. While we often do agree with him, in the cases where we don't, we often find his reasoning truly perplexing, and that is absolutely true in this case. Kozinski seems to tie himself up in a whole variety of questionable knots to find that (a) Garcia has a copyright interest in the film and (b) Google should be forced to take down every instance of the film. The ruling creates massive problems for both basic copyright law and the First Amendment. And it's actually a case where -- believe it or not -- Google and the MPAA might even be on the same side once Google likely asks both the 9th Circuit to review and/or the Supreme Court to consider the case as well. A ruling that would put both Google and the MPAA on the same side of a copyright issue? Yes, that's going to be a strange ruling indeed.

The key issue is that Garcia claims her performance is independently copyrightable from the film. This claim is preposterous. No film has ever worked that way, where the actors could make a claim to a separate copyright for each performance. In fact, just a couple years ago, a bunch of countries signed a new treaty to give actors a kind of copyright-like right in their roles in certain cases, which more or less explicitly recognizes that actors do not get to copyright their own performance. Furthermore, as far as I know, the US hasn't done anything to implement the details of that Beijing Treaty (nor has it even ratified it), so it's not like any of those new rights should apply yet, and it doesn't appear that Kozinski relied on any of them anyway.

Instead, Kozinski goes through a detailed explanation for how each actor in a film may be able to claim some sort of copyright in their own performance, because of the creative elements they add to it.

An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” .... That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all. Cf. 17 U.S.C. § 102(a)(4) (noting “pantomimes and choreographic works” are eligible for copyright protection). It’s clear that Garcia’s performance meets these minimum requirements.

Aalmuhammed isn’t to the contrary because it does not, as the dissent would have it, “articulate[] general principles of authorship.” Dissent 25. Aalmuhammed only discusses what is required for a contributor to a work to assert joint ownership over the entire work: “We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution.” ... Aalmuhammed plainly contemplates that an individual can make a “copyrightable contribution” and yet not become a joint author of the whole work. Id. For example, the author of a single poem does not necessarily become a co-author of the anthology in which the poem is published. It makes sense to impose heightened requirements on those who would leverage their individual contribution into ownership of a greater whole, but those requirements don’t apply to the copyrightability of all creative works, for which only a “minimal creative spark [is] required by the Copyright Act and the Constitution.”

[....]

This doesn’t mean that Garcia owns a copyright interest in the entire scene: She can claim copyright in her own contribution but not in “preexisting material” such as the words or actions spelled out in the underlying script. 17 U.S.C. § 103(b);.... Garcia may assert a copyright interest only in the portion of “Innocence of Muslims” that represents her individual creativity, but even if her contribution is relatively minor, it isn’t de minimis.... We need not and do not decide whether every actor has a copyright in his performance within a movie. It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail.

However, as the dissenting opinion points out, this is hogwash. Actors don't have any copyright interest in their performance and that's clear from the law and this history of copyright:

Congress has listed examples of copyrightable works, like architectural works, motion pictures, literary works, and pictorial or sculptural works. Id. The nature of these works is significantly different from an actress’s individual performance in a film, casting doubt on the conclusion that the latter can constitute a work....

Section 101 of the Act is also instructive, because it differentiates a work from the performance of it. It defines “perform a ‘work’” to mean “to recite, render, play, dance or act it.” 17 U.S.C. § 101 (emphasis added). Given this provision, it is difficult to understand how Congress intended to extend copyright protection to this acting performance. While Congress distinguishes the performance from the work itself, the majority blurs this line. Its position contemplates something very different from amalgamating independently copyrightable interests into a derivative work. See id. at § 103(b).

Consistent with section 101, section 102(b) outlines that which is not given copyright protection. It states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” An acting performance resembles the “procedure” or “process” by which “an original work” is performed. Id. Therefore, “[i]n no case does copyright protection” extend to an acting performance, “regardless of the form in which it is described, illustrated, or embodied in” the original work.

Kozinski then argues that Garcia's performance doesn't qualify as a work made for hire (which does seem slightly bizarre, but the work made for hire rules are fairly specific and might not apply here). However, even here, Kozinski makes a troubling statement that may be a dangerous precedent. In arguing that the nutty guy behind the film, Mark Basseley Youssef, is not "in the business of film making," Kozinski states:

There’s nothing in the record to suggest that Youssef was in the “regular business” of making films.... He’d held many jobs, but there’s no indication he ever worked in the film industry. And there’s no evidence he had any union contracts, relationships with prop houses or other film suppliers, leases of studio space or distribution agreements. The dissent would hold that Youssef was in the “regular business” of filmmaking simply because he made “Innocence of Muslims.” But if shooting a single amateur film amounts to the regular business of filmmaking, every schmuck with a videocamera becomes a movie mogul.

Except, um, no. In an era in which people can come from nowhere and make amazing films -- then, yes, "every schmuck with a videocamera" can be "in the business of making films." There is nothing in copyright law that says you have to be a "movie mogul" to qualify, and it's troubling both that Kozinski implies that only "movie moguls" get to make use of the works made for hire doctrine and that small independent first-time filmmakers not entrenched in Hollywood somehow have fewer rights.

As for the "implied license" that Garcia gave to Youssef by performing in his film, Kozinski makes yet another highly problematic argument, that because Youssef changed her performance, it went outside the license. Even after admitting that such a ruling would be problematic in that it "could allow an actor to force the film's author to re-edit the film--in violation of the author's exclusive right to prepare derivative works" or that "the actor could prevent the film's author from exercising his exclusive right to show the work to the public," Kozinski still seems to think that Garcia can do exactly that in this case, because the film turned out to be quite different from what Garcia was told it would be.

Garcia was told she’d be acting in an adventure film set in ancient Arabia. Were she now to complain that the film has a different title, that its historical depictions are inaccurate, that her scene is poorly edited or that the quality of the film isn’t as she’d imagined, she wouldn’t have a viable claim that her implied license had been exceeded. But the license Garcia granted Youssef wasn’t so broad as to cover the use of her performance in any project. Here, the problem isn’t that “Innocence of Muslims” is not an Arabian adventure movie: It’s that the film isn’t intended to entertain at all. The film differs so radically from anything Garcia could have imagined when she was cast that it can’t possibly be authorized by any implied license she granted Youssef.

While he notes this situation "will be extraordinarily rare," you can pretty much bet that plenty of actors who are later upset with how a director/editor handled their performance in films will cite this ruling in the inevitable lawsuits. This ruling is going to lead to a ton of really ridiculous lawsuits from actors upset about how a filmmaker portrays them in a final cut of a film.

The next problematic argument is that, given all of this, Garcia still needs to show irreparable harm from keeping the video up. And yes, as Kozinski notes, death threats do seem like a form of irreparable harm. But, the "harm" has to result from the infringement, since it's a copyright claim that she's bringing. Kozinski is somehow convinced that's the case, though his explanation doesn't seem to actually provide any explanation.

Despite her understandable focus on the threats against her life, Garcia has brought a copyright action. Therefore, she needs to show that the harm she alleges is causally related to the infringement of her copyright.

She’s made such a showing. Youssef’s unauthorized inclusion of her performance in “Innocence of Muslims” undisputedly led to the threats against Garcia.

That seems like a huge stretch, and one totally unrelated to the copyright issue, again setting a dangerous precedent for future copyright abuses.

Then there's the simple fact that taking the film off YouTube now doesn't seem likely to stop people from (a) knowing the film exists or (b) knowing that Garcia was in it. Yet, Kozinski again seems to find this argument compelling.

Garcia has shown that removing the film from YouTube will help disassociate her from the film’s anti-Islamic message and that such disassociation will keep her from suffering future threats and physical harm. Although Google asserts that the film is so widespread that removing it from YouTube will have no effect, it has provided no evidence to support this point. Taking down the film from YouTube will remove it from a prominent online platform—the platform on which it was first displayed—and will curb the harms of which Garcia complains.

On to the basic First Amendment issue. As the dissent points out, even given all of this, ordering Google to pull down the entire video is classic prior restraint. But Kozinski brushes that aside by arguing that it's okay because this is copyright infringement.

The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement.

The dissent points out that Kozinski is wrong, in part because the court never even rules that there is copyright infringement going on here, just that Garcia may have a copyright interest in her acting performance (something the dissent disagrees with entirely). But even if we accept Kozinski's interpretation, just because Garcia may have a copyright interest, no infringement has yet been shown, and thus issuing the takedown is prior restraint in violation of the First Amendment.

If all of this wasn't troubling enough, Kozinski made things even worse. He not only issued the order a week ago to Google to remove all copies of the video (and prevent any future uploads -- hello prior restraint...) but also issued a gag order forbidding anyone to talk about this until today, once the order was out. In other words, not only did the court order the film censored, but it put a gag order on anyone revealing that the film had been censored, which raises yet another First Amendment issue, which hopefully Google will appeal.

Google, Inc. shall take down all copies of “Innocence of Muslims” from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of “Innocence of Muslims” to those platforms. Google shall comply with this order within twenty-four hours of the issuance thereof.

Neither the parties nor counsel shall disclose this order, except as necessary to the takedown process, until the opinion in this case issues. This order will remain in effect until such time as the district court enters a preliminary injunction consistent with our opinion.

Almost everything about Kozinski's ruling here is troubling. The copyright interpretation just seems very far out of bounds with just about everything having to do with copyright law. It will create tremendous problems for the film industry. The First Amendment implications of both the takedown and the gag order are similarly troubling. Hopefully, either the full 9th Circuit will rethink this issue, or the Supreme Court will take an appeal and set the 9th Circuit straight.

from the feel-healthy-yet? dept

It's pretty clear at this point that after nearly a decade of histrionics and hyperbole on all sides that the definition of net neutrality has been somewhat warped. That's in no small part thanks to the larger carriers like AT&T and Verizon, who have consistently done their best to argue that they need to be allowed to engage in "creative" and "innovative" new pricing (read predatory price gouging) or they simply won't invest in the networks of tomorrow. Between the recent peering debates and Verizon's defeat of FCC neutrality rules things are as murky as ever.

Verizon's defeat of the FCC's neutrality rules was a double-edged sword for the company. On the one hand, they killed the rules (which they helped craft with Google and AT&T, and as a result did little), but on the other end, their real goal was to kill FCC authority to regulate broadband for good. Instead, the court re-enforced that the FCC does in fact have some (albeit shaky) authority to regulate broadband providers and impose neutrality rules, they just have to argue their case differently. All in all, things are murky as hell on the net neutrality front, but apparently not for Verizon CEO Lowell McAdam:

"McAdam addressed the U.S. Federal Communications Commission's proposed net neutrality rules during a conference call about the company's acquisition of Vodafone's 45 percent stake in Verizon Wireless. The FCC's move this month to resurrect net neutrality rules should provide "clarity" for the broadband industry, said McAdam, whose company successfully challenged an old version of the regulations in court."

So McAdam apparently believes by throwing a stick in the spokes and killing the existing neutrality rules (which again, most ISPs liked because they did little to nothing, and didn't touch wireless), his company has brought "clarity." But what McAdam thinks is the most important thing for people to take away from the neutrality discussion is that paying Verizon increasingly more money is the truly important part:

"McAdam dismissed concerns that his company would selectively block or slow some Web content. "We make our money by carrying traffic," he said. "That's how we make dollars. So to view that we're going to be advantaging one over the other really is a lot of histrionics, I think, at this point." But McAdam suggested that broadband power users should pay extra. "It's only natural that the heavy users help contribute to the investment to keep the Web healthy," he said. "That is the most important concept of net neutrality."

That people already paying an arm and a leg for bandwidth never somehow pay their "fair share" has long been the cornerstone of the industry's effort to impose usage caps and overage on wireless and wired networks alike. In reality, it has never been about heavy users paying more, it has always been about all users paying more. And more. And more. One thing I believe Verizon can take comfort in is that while there's some uncertainty about what the new FCC rules will be, I think they'll largely be superficial in nature and will go to great lengths to avoid tramping Verizon's right to make the Internet "healthier" through abusive pricing practices.

from the NSAT&T dept

You'll recall the Obama administration asked for input on what should happen to collected NSA data as part of the highly cosmetic reforms proposed back in January. Now reports have emerged that the Obama administration is being presented with four options by its lawyers in terms of phone communications data collection and storage. Anonymous sources tell the Wall Street Journal that one of the options is dismantling the program entirely, which of course won't be happening anytime soon. Another option continues to be to place data collection in the hands of the phone companies:

"Obama administration officials have sought to preserve the collection of phone records in a way that raises fewer concerns about privacy. One way of doing that would have the phone companies retain the data, officials said. The NSA would then tell the companies when it needs searches of call records concerning specific phone numbers the agency believes are connected to terrorism. The companies would provide the results to the NSA."

Except as we've discussed repeatedly, the line between intelligence operations and phone companies has been largely obliterated courtesy of AT&T and Verizon's patriotic enthusiasm to do whatever is asked of them -- and then much, much, more. AT&T, for example, has a proud history of not only letting the NSA tap completely into their network in real time, but they've historically even given advice on how best to bypass privacy and wiretap laws, at times even volunteering their time as intelligence analysts. Yes, letting AT&T manage the data when they're already indistinguishable from government sounds like a revolution in intelligence processing and privacy protection.

Before Snowden, when it was originally found that the telcos were illegally spying on countless Americans years back, the laws were simply changed -- which clearly worked out well for everyone involved. The biggest problem for the government making this shift to telcos playing an even bigger role in non-transparently spying on U.S. citizens? They're going to want even more legal protection and, inevitably, more taxpayer money:

"Several lawmakers have proposed legislation on Capitol Hill that would take this approach. But telecommunications companies oppose this option. Phone companies likely would demand liability protection and possibly other conditions to avoid outside demands for data—for instance, for run-of-the-mill legal cases such as divorce proceedings."

Another option according to the Journal is to have the FBI hold on to that data. That's the same FBI, who with telco help has already been doing much of the NSA's spying anyway, and has its own long, proud tradition of ignoring the law whenever it suits them. While the government pretty clearly hopes the public takes these moves as a serious effort to protect privacy, effectively all we appear to be doing is shuffling a deck of dysfunction stocked with a litany of the same old rotten players.

from the your-threat-is-not-even-remotely-scary dept

As we've noted for some time, broadcasters have long argued that if they're not given what they want they're sure to go out of business, even if the evidence never actually supports that. Their latest incarnation of that has been in heavy rotation during their battle against live TV streaming service Aereo, with broadcasters arguing that if Aereo is allowed to survive, they'll pull all of their broadcast channels from over the air and move them to paid cable tiers. As we've stated previously they should go right ahead and do that, as the publicly-owned airwaves they're currently using can certainly be put to good use. Also, enjoy the wrath of sports fans (and the oodles of politicians who'll side with sports fans to earn political brownie points) when you attempt to do that.

Gearing up for their Supreme Court showdown with Aereo on April 22, broadcasters have once again gleefully pulled out this empty threat. Hoping to convince the court's eight Judges (Justice Alito recused himself, possibly due to stock holdings) an Aereo win would be disastrous, the petitioners proclaim that free "quality" programming will cease to exist:

"The TV broadcasters reject Aereo's conclusion that cloud computing and other novel technologies could be at stake, but they do raise dire warnings about what might happen should the Supreme Court rule in Aereo's favor. As the brief states, "Indeed, if that is the world in which broadcasters must live, then they may be forced to reconsider whether they can afford to continue making the same quantity and quality of programming available to the public for free in the first place."

The debate over the word "quality" aside, note the pretense again that they they would struggle with finances, ignoring the fact that CBS posted record earnings last year and even CBS's CEO recently admitting that an Aereo win would have no serious impact on earnings. Perhaps scarier is this dire warning included in the brief by the petitioners:

"If the transmit clause could be circumvented through the simple expedient of simultaneously supplying each user with a distinct transmission generated from a distinct copy, then cable and satellite companies could potentially devise Aereo-like workarounds of their own, and in the process render the transmit clause a dead letter."

Wow, that would be rough, huh? Cable and satellite operators giving subscribers more flexible options for content that might in the process make a customer or two happy? Could even Lovecraft or Dante forge a more horrifying hellscape? Is there any point in living?

from the what-a-waste dept

Techdirt first wrote about Australia's plans to reform copyright back in August 2012. In April 2013, we passed on the news that the final report was likely to include a fair use provision. The final report was released just a couple of weeks ago, and did indeed recommend the introduction of a fair use exception to Australian copyright law. However, something happened during this long process: Australia held a general election, leading to a change in government. The new Attorney General, George Brandis, lost no time in making his views known, saying that:

he "remains to be persuaded" that Australia needs a fair use clause in its copyright law.

That's politician-speak for "I'm throwing the Australian Law Reform Commission's amazingly professional, diligent and balanced 478-page report based on evidence drawn from 109 consultations and 870 submissions into the rubbish bin, and replacing it with dogma-based policy based on my own blinkered views."
Some of those were on display in a radio interview Brandis gave this week on the subject of Internet piracy. It starts off badly:

The fact is that people don't have a right to download pirate copies of songs or movies or television programs because the people who make those programs or other items have a right of property in them. The way artists earn their living is through royalties and that's the way they are remunerated for what they do.

It's one of the ways, but certainly not the only one, as Techdirt's "The Sky Is Rising" report explained. The interview gets worse:

To pirate a video or a song without paying the fee for it through iTunes, and so on, is an act of theft, it's pure and simple.

Brandis continues parroting the copyright industry by saying:

The ISPs, in my view, do need to take some responsibility for this because they provide the facility which enables this to happen.

That's even though the Australian courts decided in the iiNet case it was simply not reasonable to require ISPs to pass judgment on those accused of unauthorized sharing. Unfortunately, given his powerful position in the new Australian government, what Brandis says matters, because he can turn his wrong-headed ideas into wrong-headed laws. The Guardian has a report of a speech he made a couple of weeks ago in which he made it pretty clear what he planned on the copyright front:

"The government will be considering possible mechanisms to provide a legal incentive for an internet service provider to co-operate with copyright owners in preventing infringement on their systems and networks," Brandis told the copyright forum. "This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy."

He said his preference would be for the industry to police itself, rather than have the government impose potentially burdensome regulations.

It's a familiar threat: come up with totally "voluntary" co-operation schemes or we'll impose them on you using our exquisitely painful "legal incentives". But what's really striking here is that not only is Brandis regurgitating bad ideas that haven't worked anywhere, he's doing this in preference to building on the great ideas that were presented to him by people who knew what they were talking about, and who cared deeply about Australia's digital future. When it comes to making copyright fit for the 21st century and promoting the online economy, it seems that the country's new government is determined to snatch defeat from the jaws of victory.

from the buttle/tuttle dept

We've talked a lot over the years about the attempts to get out "ahead of crime" by using computer programs and algorithms to try and predict who might commit a crime. Predictive computing can then either target specific areas or specific people that might be in need of some extra law enforcement attention. Except as we've noted repeatedly, these programs are only as valuable as the data they use. Garbage in, garbage out, but in this case you've got a human being on the other end of the equation whose life can be dramatically impacted by law enforcement holding what they believe is "proof" that you'll soon be up to no good.

With that in mind there's growing concerns about efforts in Chicago to use predictive analytical systems to generate a "heat list" -- or a list of 400 or so individuals most likely to be involved in violent crime. The Chicago efforts are based on a Yale sociologist's studies and use an algorithm created by an engineer at the Illinois Institute of Technology. People who find themselves on the list get personal visits from law enforcement warning them that they better be nice. The result is a collision between law enforcement that believes in the righteousness of these efforts and those who worry that they could, as an EFF rep states, create "an environment where police can show up at anyone's door at any time for any reason."

Law enforcement and the code creators, as you'd expect, argue that it's only the bad guys that need to worry about a system like this:

"A press liaison for the NIJ explains in an email: "These are persons who the model has determined are those most likely to be involved in a shooting or homicide, with probabilities that are hundreds of times that of an ordinary citizen." Commander Steven Caluris, who also works on the CPD's predictive policing program, put it a different way. "If you end up on that list, there's a reason you're there."

Unless law enforcement makes a mistake, your data is wrong (which it often will be), or we decide to expand the program significantly, right? Another concern bubbling up in Chicago is that the programs are effectively using racial profiling to target already-troubled areas where crime naturally would be greater due to poverty, without anybody bothering to perform a deeper analysis of why those areas might be having problems (aka targeting symptoms, not disease):

"...how are we deciding who gets on the list and who decides who gets on the list?" (EFF staff attorney Hanni) Fakhoury asks..."Are people ending up on this list simply because they live in a crappy part of town and know people who have been troublemakers? We are living in a time when information is easily shareable and easily accessible," Fakhoury says. "So, let's say we know that someone is connected to another person who was arrested. Or, let's say we know that someone's been arrested in the past. Is it fair to take advantage of that information? Are we just perpetuating the problem?" He continues: "How many people of color are on this heat list? Is the list all black kids? Is this list all kids from Chicago's South Side? If so, are we just closing ourselves off to this small subset of people?"

Chicago PD denies that there's any "racial, neighborhood, or other such information" being used in their heat list calculations, but a FOIA request to actually confirm that was denied, under the pretense that releasing such information could "endanger the life or physical safety of law enforcement personnel or any other person." So yeah, there's great transparency at work here as well.

Predictive computing is excellent for a good many things, from improving traffic congestion to designing sewer networks, but calculating the future movements of highly complicated and emotional human beings is a bridge too far. It's not particularly difficult to imagine a future where law enforcement (not always known for nuanced thinking or honest crime stat record keeping) starts using their belief in the infallibility of mathematics as the underpinnings for bad behavior, with the horrible experiences of the falsely accused dismissed as anecdotal experiences ("well shucks, most of the time the system is right, so its existence is justified"). It might just be time for a re-watch of Terry Gilliam's Brazil with an eye on reminding ourselves what a simple clerical error can do to the Archibald Buttles of the world.

from the perhaps-the-first-time-a-collections-agency-has-received-positive-attention dept

A little bit of good news has made its way out of the KlearGear debacle. (Quick recap: tech tchotchke store KlearGear screws up order, customer writes negative review, KlearGear bills her $3,500 for violating an extortionate "non-disparagement clause" [which wasn't even in force when it screwed up her order] and then sends that bill to collections, thus screwing up her credit record.)

Our suit also named the debt collector Fidelity Information Corp., who by this point owned the debt. Now Fidelity has done an independent review of the case and reported to the credit agencies that the debt was erroneous. So the Palmers have a measure of relief – the KlearGear debt is off John’s credit report, finally, after 18 months. Today the Palmers voluntarily dismissed Fidelity from the lawsuit.

That's good news for the Palmers, whose credit was damaged enough by KlearGear's fraudulent tactics that it prevented them from getting a loan to purchase a new furnace when theirs broke, as well as hampering their efforts to buy a new home.

That just leaves KlearGear, which has yet to respond to the lawsuit Public Citizen filed more than two months ago. KlearGear's social media accounts remain shuttered and silent. The company, however, remains open for business, however, with whoever's behind it presumably revising future earning estimates.